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''Account Stated"


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Usually, they have to claim some legal theory for the lawsuit.  If challenged they have to prove the underlying debt does meet the definition of whatever theory they claim.

 

If they didn't claim anything, maybe you can file a motion to dismiss for failure to state a claim, but they will probably just go back and amend their answer.

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Would not like to do that for various reasons, one being strategic, since I am further along and hoping they made a fatal error. Here are a bit of them...

 

 

    1, Plaintiff is the current owner ( u know the rest)

 

    2. Upon info and belief name (Blah Blah Blah)

 

    3. Upon info and belief the acct is based on a written agreement.

 

    4. Defendant used or authorized the use, (blah blah)

 

    5. Failed to pay ( Apples )

 

    6. Last payment was

 

    7. Balance....   

                               Thanks again                                                                                                                                                                                         

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what i'm trying to base off is 1019(i)..That supporting docs are necessary when submitting a complaint that calls into question the validity of a written agreement. Pa, law is clear that to satisfy the pleadings requirements in a consumer credit card collection case, the signed agreement between the credit card holder and credit card company must be attached to complaint

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@inthecourts7

 

You're referring to the credit card application.  The rule only requires the "agreement in writing".  That doesn't necessarily mean a credit card application.

 

Thus, Atlantic Credit's failure to produce a cardholder agreement and statement of account, as well as evidence of the assignment, established a meritorious defense to the action. Atlantic Credit and Finance Inc. v. Giuliana, 829 A.2d 340, 345 (Pa.Super.2003).

http://scholar.google.com/scholar_case?case=17194156749990488536&q=%22Atlantic+Credit%22+AND+%22agreement%22&hl=en&scisbd=2&as_sdt=4,39

http://scholar.google.com/scholar_case?case=9960544943488099936&q=%22Commonwealth+Financial+Systems,+Inc.+v.+Smith%22&hl=en&scisbd=2&as_sdt=4,39

 

In the 2nd link, the court discusses why evidence provided by the plaintiff was insufficient.

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I've heard the legal theory that there is no account stated when it comes to debt collectors due to the part of the FDCPA that says "The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer."

 

I've never seen the theory tested, however.  If the CA is stating that you didn't object in writing to the billing statements from the OC, there might be an account stated, but you're free to ignore any 'statements' from a CA without having one.

 

If they are claiming the account stated is from the billing statements from the OC, then you put them on the spot and demand they produce them.  A CA working directly with the OC would be able to provide them, but a JDB may not.

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@Big Time

 

 

I've heard the legal theory that there is no account stated when it comes to debt collectors due to the part of the FDCPA that says "The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer."

 

I've never seen the theory tested, however.  If the CA is stating that you didn't object in writing to the billing statements from the OC, there might be an account stated, but you're free to ignore any 'statements' from a CA without having one.

 

If they are claiming the account stated is from the billing statements from the OC, then you put them on the spot and demand they produce them.  A CA working directly with the OC would be able to provide them, but a JDB may not.

 

 

I think the reason the theory has never been tested is because of the words "this section" in the sentence.  "This section" is referring to 1692g (Validation of debts) which says that a consumer can dispute a debt within 30 days of receiving the 30-day notice in a collection letter.

 

Usually, in a debt collection lawsuit, if a JDB alleges that the consumer never disputed billing statements, it's referring to the OC's billing statements.  I believe by making that allegation, they're claiming that by not disputing the billing statements and possibly making payments after receiving them, the consumer must have been in agreement that the statements and balances were accurate which is one of the requirements to prove an account stated.

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